LILLIE MAE TRAIL, RESPONDENT'S BRIEF · employ of Greg Whittington as a paid hit-man. During...

r=~~------IN THE SUPREME COURT OF APPEALS OF WES eRqNIA[1 ~ lr1

NO 14-0887 If FEB 2 2015 Uj STATE OF WEST VIRGINIA

RORY L PERRY n CLERK SUPREME COURT OF APPEALS

OF WEST VIRGINIA Plaintiff Below Respondent

v

LILLIE MAE TRAIL

Defendant Below Petitioner

RESPONDENTS BRIEF

PATRICK MORRISEY ATTORNEY GENERAL

SHANNON FREDERICK KISER ASSISTANT ATTORNEY GENERAL W Va Bar Number 12286 812 Quarrier Street 6th Floor Charleston WV 25301 Telephone (304) 558-5830 Email ShannonFKiserwvagogov

Counselfor Respondent

TABLE OF CONTENTS

Page

Table of Contents i

Table of Authorities iii

Assignments of Erroriv

Statement of the Case 1

A Petitioners Trial October 6 1997 through October 232997 Guilt Phase 1

B Petitioners Trial October 24 1997 through October 27 1997 Mercy Phase 11

C Petitioners Remmer Hearing November 5 1998 12

Statement Regarding Oral Argument and Decision 15

Argument 15

A The circuit Court Correctly Applied Sutphin in Finding That Petitioner was Not Unfairly Prejudiced as a Result of the Interaction Between Ms Shamblin and Ms Nunley 15

1 The Circuit Court Correctly Applied this Honorable Courts Holding in Sutphin 15 2 Ms Shamblin Was Clearly Not an Interested Party Under Petitioner

Application ofSutphin 17 3 The State Proved That Petitioner Suffered No Prejudice as a Result of the

Interaction Between Ms Shamblin and Ms Nunley 18

B The Circuit Court Applied the Correct Evidentiary Standard and Found the Crime Scene Photographs to Have Higher Probative Evidentiary Value in the Mercy Phase Of Petitioners Trial 19

C The circuit Court Correctly Read West Virginias Slayer Statute to the Jury Including Appropriate Admonishment Because Trial Counsel for Petitioner Repeatedly Inferred Petitioners Innocence Based upon Her Willingness to Forego Insurance Proceeds 22

D The circuit Court Did Not Err in Permitting the State to Argue a Theme of Atonement In Closing during the Mercy Phase of Petitioners Underlying TriaL 23

E The circuit Court Did Not Permit the State to Make Statements to the Jury That Were Unsupported by Evidence at TriaL 24

F The Circuit Court Properly Admitted a Summary Chart That Was Used by Both Petitioner and the State to Show Numerous Insurance Policies at Issue in Petitioners Criminal Case 26

G The State Proffered Sufficient Evidence to Warrant the Jurys Finding of Guilt Beyond a Reasonable Doubt 27

H The Errors Petitioner Now Complains OfDid Not Exist Were Otherwise Not Numerous and were Harmless 28

Conclusion29

11

TABLE OF AUTHORITIES

CASES Page

Remmer v United States 347 US 227 (1954) 12 16 18 State v Derr 192 w Va 165451 SE2d 731 (1994) 19 State v McLaughlin 226 W Va 229 700 SE2d 289 (2010) 18-202123 State v Nuckols 152 W Va 736 166 SE2d 3 (1968) 26 State v Rowe 163 W Va 593259 SE2d 26 (1979) 20 State v Rygh 206 W Va 295 n1 524 SE2d 447 nl (1999) 21 State v Saunders 166 W Va 500275 SE2d 920 (1981) 20 State v Smith 156 W Va 385 193 SE2d 550 (1972) 28 State v Smith 190 W Va 374438 SE2d 554 (1993) 24-25 State v Sutphin 195 W Va 551466 SE2d 402 (1995) 12 15 16 18 State v Tyler 211 W Va 246 251565 SE2d 368 373 (2002) 20

STATUTES

W Va Code sect 42-4-2 222

OTHER

W Va R Evid 1006 26

111

ASSIGNMENTS OF ERROR

Petitioner claims eight (8) Assignments of Error which the State specifically and

generally denies

A Petitioners Remmer Hearing Was Fatally Flawed as the Circuit Court Erred by Placing the Burden of Proof upon Petitioner Without Determining Whether the Source of the Improper Juror Contact Was an Interested Party

B The Circuit Court Erred By Applying a Relaxed Evidentiary Standard in the Mercy Phase to Evidence that It Deemed Too Prejudicial to Admit During the Guilt Phase and by Doing so It Violated Petitioners Equal Protection and Due Process Rights

C The Circuit Court Erred by Reading to the Jury West Virginias Slayer Statute Because It Was Irrelevant Created Confusion Was Misleading and Resulted in Unfair Prejudice Which Was Not Cured by the Limiting Instruction

D The Circuit Court Committed Reversible Error by Permitting the Prosecutor to Imply During Closing Argument That a Verdict of No Mercy Would Bring Atonement for a Victim in an Unrelated Case

E The Circuit Court Committed Reversible Error When it Permitted the Prosecutor to Make Statements to the Jury That Were Unsupported by Any Evidence at Trial

F The Circuit Court Abused Its Discretion by Admitting a Summary Chart That Was Misleading and Did Not Assist the Jury in Finding the Truth

G The Circuit Court Erred by Not Granting Petitioner a New Trial Based upon Insufficient Evidence

H Petitioners Conviction Should Be Set Aside in Light of the Cumulative Effect of Errors in Her Trial

lV

STATEMENT OF THE CASE

Pursuant to W Va Rev RAP 10(d) the State of West Virginia (hereinafter State)

incorporates herein the Statement of the Case as detailed in the Brief of Lillie M Trail

(hereinafter Petitioner) with the following additionscorrections For purposes of

clarification this case involves Petitioners murder of Chester Trail her husband through the

employ of Greg Whittington as a paid hit-man During Petitioners trial however much time

was given to a previous and similar crime in which Petitioner pled nolo contendere to paying

Mr Whittington and his father a substantial amount of money to either harm or kill another

individual Mark Medley Given the similarity of both the criminal actions and the persons

involved and the contentions between Mr Whittington and Petitioner regarding their respective

involvement in both crimes in-depth testimony of both crimes was proffered and examined in

the underlying criminal matter This Honorable Court should also note that the resulting

convictions for both crimes the murder of Mr Trail and the unlawful wounding of Mark

Medley were subsequent in time to the underlying criminal matter

A Petitioners Trial October 61997 through October 231997 Guilt Phase

During the States case-in-chief it introduced the testimony of Edward T Broderick a

claims manager for the Monumental Life Insurance Company who revealed that Petitioner

signed for an additional accidental deathlife insurance policy in the form of a fan1ily plan which

included the victim in or around May 1994 roughly six months before the underlying murder

(App vol 2 at 79) Additionally on the first day of the trial Sergeant Donnie R Howell the

investigating officer in the underlying crime was questioned at great length as to Greg

Whittingtons reputation habit and past history of lying (Full Testimony App vol 2 at 107shy

167 App vol 3 at 5-48) Sgt Howell recognized on many occasions that Mr Whittington a

key witness for the State gave conflicting statements to police in his implication of Petitioner in

the underlying crime (Jd App vol 2 at 136-36 143-44 146 150 153-54 160 App Vol 3 at

26) Sgt Howell also gave testimony however reciting the evidence of collaboration between

Mr Whittington and Petitioner concerning the murder of her husband (App vol 3 at 7-12)

Chief among Sgt Howells statements was the fact that Petitioner had engaged in paying Mr

Whittington to previously carry out a criminal act in the unlawful wounding of Mark Medley

(App vol 3 at 9) Sgt Howell also reported some of the mysterious conversations between Mr

Whittington and Petitioner (App vol 3 at 31)

The State also called David Wayne Mason general manager for Home Beneficial Life

Insurance Company who identified that accidental death life insurance policies were taken out

on the victim in the year before and the year of his untimely death (Full Testimony App vol 3

at 50-67) The State also called Paul Little Jr an employee with the Appalachian Life

Insurance Company who identified another life insurance policy on the victim effective May 1

1993 (Full Testimony App vol 3 at 67-71) While the policy was ultimately paid to the

victims estate the policy itself was activated through the victims employment and was

commonly referred to as a burial policy (App vol 3 at 71)

Following a brief recess the State moved the Circuit Court of Lincoln County West

Virginia (hereinafter Circuit Court) to judicially notice West Virginias Slayer Statute W

Va Code sect 42-4-2 (App Vol 3 at 74-83) After hearing argument from both parties the

Circuit Court judicially noticed the jury of the statute surmising that the jury was able to

reasonably determine its application in concluding Petitioners motives in giving up her share to

the victims estate (App vol 3 at 89-90)

2

The State next called Mr Whittington to testify (Full Testimony App vol 3 at 91-226

236-64 App vol 4 at 6-13) Mr Whittington identified the weapon he used to shoot the victim

and outlined the benefit of his plea bargain with the State (App vol 3 at 91-92) He recounted

Petitioner giving him and his father three thousand dollars ($300000) to kill Mr Medley the

same crime wherein Petitioner was previously convicted of unlawful wounding (App vol 3 at

95) Mr Whittington also specified the events surrounding such crime (App vol 3 at 99-103)

The State also addressed Mr Whittingtons reputation as a liar (App vol 3 at 104)

Mr Whittington also addressed Petitioner asking him to kill her husband the victim in

the underlying criminal action (App vol 3 at 106) Mr Whittington stated that Petitioner

offered ten thousand dollars for the crime (App vol 3 at 107) Mr Whittington recounted that

Petitioner wished the death to appear like a hunting accident (App vol 3 at 109) Mr

Whittington also explained that Petitioner became angry when he had failed to timely murder the

victim because of the amount in insurance premiums Petitioner was paying (App vol 3 at 113)

When Mr Whittington told Petitioner that he couldnt go through with the murder

Petitioner informed him that she would turn him in for the crime against Mr Medley that she

would get him fired from his job and that she would have his kids taken away (App vol 3 at

115) He also identified that Petitioner gave him money to purchase the weapon he eventually

used to shoot the victim (App vol 3 at 117) Mr Whittington then recounted the events of the

murder how he fired some heroin to work up the courage to shoot the victim how he missed

his first shot and how he ended up empty[ing] the gun to stop the commotion the first shot had

caused (App vol 3 at 125-26) He further identified that Petitioner gave him an additional

thousand dollars ($100000) after committing the act (App vol 3 at 129) Mr Whittington

3

stated that Petitioner even gave him a car deducting the value from the amount agreed upon for

the crime (App vol 3 at 131-32)

During cross-examination trial counsel for Petitioner absolutely lambasted Mr

Whittingtons reputation his reasons for testifying against Petitioner in the form of the benefits

flowing from his plea agreement his gaming of the justice system and his prior inconsistent

statements (App vol 3 at 146-152) Throughout trial counsels critique Mr Whittington stood

steadfast in his position that Petitioner hired him to kill her husband (App vol 3 at 151 159

166 172) Further the State explicitly informed him that his testimony would not have an

impact on any future motions to reduce his own sentence and that he would face perjury charges

should he lie during his testimony (App vol 4 at 12)

During the testimony of Mr Whittington the State asked for a brief accommodation and

called Shelia Harner an employee of the Mutual of Omaha Insurance Company (Full

Testimony App vol 3 at 226-35) Ms Harner reported that Petitioner took out a thirty-seven

thousand dollar ($3700000) life insurance policy on herself while electing additional coverage

the victim about a year-and-a-half before the murder (App vol 3 at 227) Following Ms

Harners testimony the examination of Mr Whittington continued to the end of the day and into

the following morning

The State next called Mr Whittingtons wife Michelle Whittington (Full Testimony

App vol 4 at 16-50) Ms Whittington testified that Petitioner never seemed afraid of Mr

Whittington that Petitioner would call and request to speak directly to Mr Whittington and that

Petitioner never acted as ifMr Whittington posed a threat (App vol 4 at 20-21) Trial counsel

for Petitioner extensively questioned Ms Whittington about Mr Whittingtons tendency to be

untruthful (App vol 4 at 22-38) While trial counsel for Petitioner uncovered that Ms

4

Whittington knew little about the crime prior to Mr Whittingtons arrest the State revealed that

in the time leading up to the crime Mr Whittington became increasingly agitated stating that he

would have to kill Petitioners husband or otherwise continue being harassed by Petitioner to do

as much CAppo vol 4 at 38)

The State also called Jerry Porter an employee of Prudential Insurance Company (Full

Testimony App vol 4 at 52-59) Mr Porter revealed that Petitioner was listed as the sole

beneficiary of a life insurance policy on the victim worth forty-three thousand four-hundred

fifty-three dollars and twenty-five cents ($4345325) CAppo vol 4 at 53) Mr Porter revealed

that he met with Petitioner when she filled out the death claim form and that she informed Mr

Porter that her husband died in a hunting accident (App vol 4 at 55) The date of the policy

was December 2 1986 (App vol 4 at 58)

The State next called Peg Spradau an investigative specialist for the CAN Insurance

Company (Full Testimony App vol 4 at 62-69) Ms Spradau indicated that an accidental

death policy was taken out on the victim on May 1 1993 about a year-and-a-half before the

victims murder (App vol 4 at 65) The policy was worth one-hundred and fifty-one thousand

dollars ($15100000) (App vol 4 at 64-65) Petitioner was listed as the sole beneficiary

(App vol 4 at 65) Trial counsel for Petitioner again pointed out the necessity for such

insurance in the mining industry (App vol 4 at 69)

The State then called Richard E Berg an employee of Physicians Mutual and Physicians

Life (Full Testimony App vol 4 at 70-) Mr Berg recognized that two policies were taken out

on the victim effective May 7 1994 approximately sixth months before the murder and

September 22 1994 approximately two months before the murder CAppo vol 4 at 72-73) The

policies would pay five thousand dollars ($500000) and three thousand dollars ($300000)

5

respectively (App vol 4 at 72-73) Trial counsel for Petitioner again proffered that both

policies were solicited via mailers to Petitioners address (App vol 4 at 74) Mr Berg

however surmised that the signature on the policies alleged to be that of the victim did not

match the victims prior signature calling the victims alleged action in taking the policies out on

his own volition into question (App vol 4 at 76) As a result Mr Berg stated that no insurance

proceeds had been paid at the time of the trial (App vol 4 at 81)

The State then called Richard Radune an employee of the Signa Corporation (Full

Testimony App vol 4 at 90-104) Mr Radune identified that the victim had obtained three

insurance policies through his employer and employees union (App vol 4 at 92) While two

of those three policies were a benefit of employment the last policy was a policy the victim had

applied for on March 1 1993 (App vol 4 at 95) The amount of insurance of the

aforementioned policies was two hundred thousand dollars ($20000000) (App vol 4 at 92shy

96) Petitioner was the sole beneficiary of the three policies (App vol 4 at 92-96)

The State next called Douglas G Sudduth a representative of JC Penny Life Insurance

Company (Full Testimony App vol 4 at 106-117) Mr Sudduth identified one life insurance

policy for thirty thousand dollars taken out approximately one year before the victims death

(App vol 4 at 108) Mr Sudduth identified that the policy contained a provisionary

beneficiary meaning that the spouse in this case Petitioner would receive the amount of the

policy upon the insureds death (App vol 4 at 108) Mr Sudduth also identified that coverage

was increased in July 1994 approximately four months prior to the victims death for another

thirty thousand dollars ($3000000) (App vol 4 at 109-110) Mr Sudduth further identified

Petitioner as the person who negotiated for the coverage (App vol 4 at 116)

6

The State then called Robert J Gamble an employee of the AIG Life Insurance

Company (Full Testimony App vol 4 at 118-27) While the content of Mr Gambles

testimony largely had no evidentiary impact trial counsel for Petitioner took advantage of the

testimony to introduce various forms of the victims signature and to present to the jury that the

victim almost got killed at work in 1992 (App vol 4 at 125-27)

The State subsequently called Gloria Ross Mr Whittingtons mother-in-law (Full

Testimony App vol 4 at 152-93) While Ms Ross was not intimately familiar with the details

surrounding the murder of the victim she could corroborate Mr Whittingtons story regarding

Petitioners mysterious contact with Mr Whittington in the days leading up to the murder (App

vol 4 at 157-159) Trial counsel for Petitioner reaffirmed Mr Whittingtons tendency to lie to

friends and family (App vol 4 at 188-93)

The State next called Jim Booth an employee of the Global Life and Accident Insurance

Company (Full Testimony App vol 5 at 4-14) Mr Booth identified two additional insurance

policies listing the victim as the insured (App vol 5 at 5) The first policy was for ten thousand

dollars ($1000000) and was effective March 24 1994 approximately eight months prior to the

victims murder (App vol 5 at 6) The second policy added five thousand dollars ($500000)

and was effective July 24 1994 approximately four months prior to the victims murder (App

vol 5 at 7)

On the seventh day of trial the State called Dottie Hill a neighbor of the victim and

Petitioner (Full Testimony App vol 6 at 11-36) Ms Hill was one of the individuals to find

the victims body CAppo vol 6 at 14) Ms Hill recounted finding the body and testified that

Petitioner did not come over to look at the body once it had been found or ask if the victim was

alive (App vol 6 at 14 16) Ms Hill further stated that Petitioner showed no emotion at the

7

crime scene (App vol 6 at 15) Upon cross-examination however Ms Hill admitted that she

did not observe Petitioner for the entire duration she was at the crime scene (App vol 6 at 24)

The State then called Betty Bums the victims sister (Full Testimony App vol 6 at 37shy

59) Ms Bums stated that she traveled to Petitioners home after hearing that the victim had

been shot (App vol 6 at 45) Ms Bums stated that she agreed to handle all the arrangements

for the victims funeral and noted that during her face-to-face conversation with Petitioner she

never appeared to cry (App vol 6 at 45) Ms Bums stated that she and one of her other

brothers did all of the receiving during the victims viewing at the funeral home (App vol 6 at

47) Ms Bums further identified that Petitioner failed to tell her at any time that the victims

death was the result of murder rather than a hunting accident or that Petitioner suspected the

shooter to be Mr Whittington (App vol 6 at 51)

The State next called Arch Runyon president of the Ross Sales and Processing

Company for which the victim was working at the time of his death (Full Testimony App vol

6 at 62-139) Mr Runyon identified several of the victims pensions and retirement plans as

well as a burial insurance plan totaling thirty-six thousand eight hundred eighty-eight dollars and

fifty-one cents ($3688851) (App vol 6 at 64-70) Mr Runyon also stated that Petitioner

made a claim on the assets roughly two weeks after the murder claiming that the victim died as a

result of a hunting accident (App vol 6 at 69-70) Trial counsel for Petitioner had Mr Runyon

agree that the victims position of roof bolter was perhaps the most dangerous job in coal

mining (App vol 6 at 72) As a result the victim had suffered many injuries throughout the

course of his work (App vol 6 at 72-98)

Petitioner first called Mark Medley the victim of the prior crime involving Petitioner and

Mr Whittington as her first witness (Full Testimony App vol 7 at 11-28) Mr Medley

8

informed the jury that he was never drugged by Petitioner and that Mr Whittington was a liar

(App vol 7 at 12) The State however elicited testimony from Mr Medley that he had been

drinking over at Petitioners residence on the night he was brutally beaten (App vol 7 at 15shy

26)

Petitioner next called Dr Bruce A Hoak a Board Certified General Surgeon at the

Charleston Area Medical Center (Full Testimony App vol 7 at 28-36) Dr Hoak testified that

the only substance found in Mr Medleys blood on the night of his beating was alcohol (App

vol 7 at 30) Dr Hoak did however admit that the amount of alcohol in Mr Medleys system

was extraordinarily high (App vol 7 at 33)

Petitioner then called Freddie P Michael the landlord of the apartment the victim rented

while at work (Full Testimony App vol 7 at 43-49) Mr Michael characterized the victim as a

fine gentleman and recounted the day Petitioner arrived to pick up the things the victim had

left in the apartment (App vol 7 at 45-47) Mr Michael stated that Petitioner openly cried

about the victims death while at the apartment (App vol 7 at 47-48)

Petitioner subsequently called Gary R Duncan the human resources manager of the Roth

Sales and Processing Company (Full Testimony App vol 8 at 6-20) Mr Duncan outlined

many instances where the victim was injured throughout the course of his mining work with the

company (App vol 8 at 8-15) Petitioner then used the dates of those accidents in conjunction

with the States prior evidence of the dates of the many insurance policies on the victim to show

a logical correlation between the two (App vol 8 at 18-20)

Petitioner then called her youngest son Mark A Trail Jr (hereinafter Jr Trail) (Full

Testimony App vol 8 at 21-49) Jr Trail recognized that the victim and Petitioner routinely

signed documents for one another (App vol 8 at 25-26) Jr Trail also recalled that Mr

9

Whittington persistently asked the victim to purchase the car eventually sold to him by

Petitioner CAppo vol 8 at 29) Jr Trail also expressed that Petitioner never seemed to enjoy

speaking with Mr Whittington CAppo vol 8 at 30) The State however pointed out some major

inconsistencies in the signatures purportedly written by the victim on official insurance

documents (App vol 8 at 37-40) In response Petitioner pointed out that the victim had an

inconsistent signature (App vol 8 at 43) The State also elicited testimony from Jr Trail that

he and his older brothers had been signing over checks received from insurance companies to

Petitioner despite Petitioners contention that she had relinquished all of the insurance proceeds

resulting from the victims death (App vol 8 at 40)

Petitioner next called T Rebecca Combs a friend of the victim and Petitioner (Full

Testimony App vol 8 at 54-59) Ms Combs identified that Petitioner had put a television on

layaway for the victim as a Christmas gift before the victims murder (App vol 8 at 58)

Thereafter the defense rested CAppo vol 8 at 60) In its closing argument the State pointed out

that the total amount of insurance proceeds that Petitioner could have gained by murdering her

husband was approximately six hundred and eighty-five thousand dollars ($68500000) at

minimum CAppo vol 9 at 24) Further the State reasoned that while Mr Whittington was by

all means an awful human being Petitioner would not have attempted to find a good or

righteous person to contract with for purposes of murdering her husband (App vol 9 at 25)

Finally the State pointed out that in the months leading up to the murder the victim obtained a

grossly disproportionate amount of life insurance when compared to his life insurance policies

prior to the Mark Medley incident l (App vol 9 at 29-31) The State also called into question

Petitioners motives in attempting to claim insurance while listing the victims death as a hunting

1 The amount of insurance the victim had prior to the Mark Medley incident was approximately one hundred and fifty-three thousand dollars ($15300000) (App vol 9 at 45) Compare that with the amount obtained after the Mark Medley incident five hundred and thirty-one thousand dollars ($53100000) CAppo vol 9 at 45)

10

evidence two weeks after the murder when the parties should have dutifully known that the

victim died as a result of murder (App vol 9 at 50)

After deliberations the jury returned a verdict of gUilt (App vol 9 at 115) Petitioner

requested that the jury be polled and the verdict returned unanimous (App vol 9 at 117)

B Petitioners Trial October 241997 through October 271997 Mercy Phase

During the mercy phase of Petitioners trial the Circuit Court allowed crime scene

photographs of the victim to be admitted into evidence over the objection of Petitioner (App

vol 11 at 5) While Petitioner objected to the prejudicial impact of the photographs the Circuit

Court determined that the probative value outweighed prejudicial concerns with respect to a

finding of mercy (App vol 11 at 5) The State again called Sgt Howell for purposes of

admitting the photographs (Full Testimony App vol 11 at 12-14)

The State then called Gail W Medley the father of Mark Medley (Full Testimony App

vol 11 at 15-18) Gail Medley testified as to the physical debilitation suffered by Mark Medley

following the attempt on his life by Petitioner and Mr Whittington (App vol 11 at 15-16)

Petitioner introduced Catherine L Medley PetitionerS sister (Full Testimony App vol

11 at 20-27) Catherine Medley stated that she and Petitioner had never plotted the murder of

Mark Medley (App vol 11 at 20-21) No other mitigating evidence was introduced

In closing the State used the theme of atonement stressed in Petitioners opening

asking for atonement for Chester Trail and Mark Medley (App vol 11 at 27) The jury

returned a verdict of life without mercy and was polled on their unanimity (App vol 11 at 34shy

36)

11

C Petitioners Remmer Hearing November 51998

On November 5 1998 the Circuit Court held a hearing to determine if a new trial would

be warranted under State v Sutphin 195 W Va 551 466 SE2d 402 (1995) or its federal

counterpart Remmer v United States 347 US 227 (1954) for purposes of alleged jury

tampering by the State (App vol 12 at 7) After reviewing Sutphin the Circuit Court

determined that the Petitioner had the burden of proof by clear and convincing evidence (App

vol 12 at 7) Petitioner did not object to such a holding (App vol 12 at 9)

Petitioner first called Linda Shanlblin an employee of Sams Club (Full Testimony

App vol 12 at 13-28) Ms Shamblins daughter was at one time married to one of Petitioners

sons (App vol 12 at 14) Ms Shamblin admitted that years ago there had been bad blood

with the Trial family as a result of her daughter dating Petitioners son (App vol 12 at 15) Ms

Shamblin recalled certain occasions when Petitioner lied to cover up the fact that Ms Shamblins

daughter was staying the night at Petitioners residence (App vol 12 at 17) She also recalled

one occasion when Petitioner took up for her son after he had physically abused Ms Shamblins

daughter (App vol 12 at 17) Ms Shamblin however denied having a lot of interaction with

Petitioner (App vol 12 at 18) Ms Shamblin also repeatedly denied having any hard feelings

against Petitioner asserting that Petitioners claims of such were disingenuous (App vol 12 at

19)

Moving on to the point of the hearing trial counsel began questioning Ms Shamblins

interactions with Teresa Nunley a juror in Petitioners trial (App vol 12 at 20) Ms Shamblin

worked at the Sams Club with Ms Nunley and was the person responsible for delivering

paychecks to other employees including Ms Nunley (App vol 12 at 21-22) Ms Shamblin

reported that she asked Ms Nunley if she were on the jury for Petitioners trial and that Ms

12

Nunley responded that she was unable to discuss the trial (App vol 12 at 23) Ms Shamblin

did admit that the trial was routinely spoken about at work because of her daughters relationship

to Petitioners son (App vol 12 at 24) Ms Shamblin denied speaking further to Ms Nunley

about the trial however claiming that she did not really know who Ms Nunley was based off of

extremely limited interaction in the workplace (App vol 12 at 24)

Upon cross-examination Ms Shamblin denied having any relationship with Ms Nunley

whatsoever beyond giving her a weekly paycheck (App vol 12 at 25) Further Ms Shamblin

admitted that she was unsure if her conversation with Ms Nunley even took place at the time of

the trial (App vol 12 at 26)

Petitioner next called Teresa Nunley the juror in question (App vol 12 at 28-51) Ms

Nunley agreed that she barely knew of Ms Shamblin but contended that Ms Shamblin asserted

that Petitioner was guilty during the brief interaction (App vol 12 at 30-31) Ms Nunley

stated that she just walked on out [of the breakroom] and went and smoked (App vol 12 at

31) Ms Nunley reported that Ms Shamblin did not say anything else to her about the trial even

though Ms Shamblin appeared to by trying to influence her (App vol 12 at 31-32) Ms

Nunely further affirmed that the interaction took place at the time of Petitioners trial (App vol

12 at 40) Ms Nunely denied discussing the interaction with Ms Shamblin with any of the other

jurors (App vol 12 at 42)

Upon cross-examination Ms Nunley stated that Ms Shamblin was simply a co-worker

that Ms Shamblin had no authority to fire her or withhold her paycheck and that in fact Ms

Shamblin even failed to use Ms Nunelys correct name in greeting her (App vol 12 at 44)

Ms Nunely further recalled that the interaction lasted no longer than fifteen (15) seconds (App

vol 12 at 44) Ms Nunely ultimately reported that Ms Shamblins statement that Petitioner was

13

guilty as sin had absolutely no impact in her finding of guilt (App vol 12 at 47) Ms

Nunley also stated that as a juror in such a high-profile case she had numerous people try to

speak to her about the matter but diligently turned them away CAppo vol 12 at 50)

Finally Petitioner called Misty Dawn Holtzman who was also employed by Sams Club

at the time of Petitioners trial (Full Testimony App vol 12 at 55-68) Ms Holtzman stated

that Ms Nunley directly approached her and asked her about Petitioners trial CAppo vol 12 at

58) Ms Holtzman stated that Ms Shamblin went into detail about Petitioner with Ms Nunley

and that Ms Nunley appeared to be influenced by the interaction CAppo vol 12 at 61) Ms

Holtzman stated that Ms Nunley facially appeared to have concurred with Ms Shamblin

CAppo vol 12 at 62)

Upon cross-examination Ms Holtzman admitted that she was good friends with

Petitioner and that her mother and Petitioner were friends and that she had grown up with

Petitioners children (App vol 12 at 64) Ms Holtzman also admitted that Ms Nunley never

stated that she had come to a decision at any time either before or after her interaction with Ms

Shamblin CAppo vol 12 at 65)

Following witness testimony trial counsel for Petitioner revisited the ruling from

Remmer cautioning the Circuit Court that the State held the burden of proving that Ms Nunley

was not improperly influenced or affected by Ms Shamblins statement CAppo vol 12 at 71)

Thereafter in an Order dated June 8 2006 the Circuit Court denied Petitioners motions under

W Va RCP 29 and 33 for a new trial and a directed verdict of acquittal respectively (App

vol 13 at 51-54) The Circuit Court subsequently issued a Further and Final Order on January 8

2007 finding that sufficient evidence existed for a finding of guilt beyond a reasonable doubt

finding that Petitioner failed to proffer clear and convincing evidence that juror misconduct

14

prejudiced the underlying criminal trial recognizing that Ms Holtzman was a friend of

Petitioners and finding that no prejudice manifested against Petitioner as a result of Ms

Shamblins interaction with Ms Nunley (App vol 13 at 55-72)

The Circuit Court subsequently reissued a final Order on July 152014 (App vol 13 at

81-82) Petitioner now appeals her conviction to this Honorable Court

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is ripe for decision by Memorandum Opinion as the law contemplated within

Petitioners Assignment of Error is well practiced although the State acknowledges that oral

argument under W Va Rev RAP 19 is also proper

ARGUMENT

A The Circuit Court Correctly Applied Sutphin in Finding That Petitioner Was Not Unfairly Prejudiced as a Result of the Interaction Between Ms Shamblin and Ms Nunley

1 The Circuit Court Correctly Applied this Honorable Courts Holding in Sutphin

West Virginia has long-standing precedent that the issue ofjuror misconduct is addressed

to the sound discretion of the trial court

A motion for a new trial on the ground of the misconduct of a jury is addressed to the sound discretion of the court which as a rule will not be disturbed on appeal where it appears that defendant was not injured by the misconduct or influence complained of The question as to whether or not a juror has been subjected to improper influence affecting the verdict is a fact primarily to be determined by the trial judge from the circumstances which must be clear and convincing to require a new trial proof of mere opportunity to influence the jury being insufficient

Syl Pt 1 State v Sutphin 195 W Va 551466 SE2d 402 (1995) (citing State v Johnson III

W Va 653 164 SE 31 (1932)) When determining improper influence the trial court first has

the responsibility of determining whether the juror was contacted by an interested party or a

15

third-party stranger having no interest in the litigation Sutphin 195 W Va at 557 466 SE2d

at 408

This Honorable Court used the United States Supreme Courts ruling in Remmer v

United States 347 US 227 (1954) as a guideline for defining the importance of conducting an

independent hearing to detennine the likelihood that juror misconduct resulted in unfair

prejudice to a criminal defendant The Remmer Court held that [i]n a criminal case any private

communication contact or tampering directly or indirectly with a juror during a trial about the

matter pending before the jury is for obvious reasons deemed presumptively prejudicial if not

made in pursuance of known rules of the court and the instructions and directions of the court

made during the trial with full knowledge of the parties Sutphin 195 W Va at 558 466

SE2d at 409 (citing Remmer 347 US at 229)

In Remmer the United States Supreme Court vacated the ruling of a district court where

the district court independently researched an instance of juror tampering when a juror was

infonned he could profit should he bring about a favorable verdict Remmer 347 US at 228

The United States Supreme Court held that the district court erred in failing to hold a hearing on

the matter to detennine whether prejudice resulted from the misconduct Id at 230

In Sutphin the trial court held a Remmer hearing after finding out that a juror contacted a

witness for the State to speak about the underlying trial Sutphin 195 W Va at 557 466 SE2d

at 408 The juror was not aware that the witness a good friend was testifying for the State Id

After the witness testimony the juror traveled to the witness home to infonn him that his

decision in the case had no impact in his judgment of the case ld Following the Remmer

hearing the trial court held that although the contact was improper there was no clear and

16

convincing evidence that the contact affected the jurys deliberations or prejudiced the

defendant Id

Here the Circuit Court held a hearing under Sutphin Remmer to determine the extend and

possible prejudice arising from Ms Nunleys out-of-court interaction with Ms Shamblin

Ultimately the Circuit Court found that no clear and convincing evidence existed upon which to

change the jurys verdict of gUilty First and foremost Ms Shamblin and Ms Nunley both

agreed that they were not friends and that they barely knew one another Second the

complained-of interaction did not last more than fifteen (15) seconds While the content of the

interaction is in various stages of dispute Ms Nunley affirmed that it did not bias her decision

and that she did not discuss the interaction with the other jurors

The only individual who claimed that the interaction affected the outcome of the trial was

Ms Holtzman who openly admitted that she was a long-time family friend of Petitioner Beyond

Ms Holtzman whose testimony greatly conflicted with that of both Ms Shamblin and Ms

Nunley there was no evidence that the interaction resulted in prejudice to Petitioner Under

Sutphin the Circuit Court held a proper hearing heard all of the evidence proffered by Petitioner

and the State and simply could not find that evidence existed warranting a grant of Petitioners

motions for acquittal andor new trial

2 Ms Shamblin Was Clearly Not an Interested Party Under Petitioners Application of Sutphin

Petitioner asks this Honorable Court to treat Ms Shamblin as if she was an interested

witness While Petitioner offers considerable case law defining and implementing the differing

standards between an interested and uninterested party contacting a juror during the course of a

trial the fact remains that Ms Shamblin was clearly not an interested party Ms Shamblin was

not a representative or witness for the State While Ms Shamblin was indirectly related to

17

Petitioner and her husband through her daughters relationship with Petitioners son the record

clearly establishes that she had no interest in the outcome of Petitioners proceedings Petitioner

tries to argue that bad blood or an old vendetta establishes Ms Shamblin as an interested

party but compared to the facts of Sutphin or Remmer such allegations are simply insufficient

Rather Ms Shamblin engaged in workplace gossip with a stranger that while improper

created no prejudice in Petitioners case Therefore in applying the Sutphin holding the Circuit

Court correctly examined Petitioners underlying claim and found insufficient evidence on which

to grant Petitioners motion for new trial andor acquittal Such procedure and holding is clearly

within the discretion of the Circuit Court

3 The State Proved That Petitioner Suffered No Prejudice as a Result of the Interaction Between Ms Shamblin and Ms Nunley

In the alternative should this Honorable Court find that proper procedure demanded the

Circuit Court to treat Ms Shamblin as an interested party the State more than proved its burden

through clear and convincing evidence that Petitioner suffered no prejudice Again Ms Nunley

affirmatively stated that her interaction with Ms Shamblin played no part in her individual

finding of guilt and she affirmatively stated that her interaction with Ms Shamblin was not

mentioned at any point during jury deliberations The only person stating otherwise was Ms

Holtzman a witness with a definite and illustratable interest in reversing Petitioners interest

and a witness with no first-hand knowledge of the juror deliberations

Therefore the State respectfully requests that this Honorable Court affirm Petitioners

conviction in the Circuit Court below

18

B The Circuit Court Applied the Correct Evidentiary Standard and Found the Crime Scene Photographs to Have Higher Probative Evidentiary Value in the Mercy Phase of Petitioners Trial

Next Petitioner contends that the Circuit Court erred in allowing cnme scene

photographs during the mercy phase of Petitioners underlying criminal case In doing so

Petitioner contends that the Circuit Court erred in applying a relaxed evidentiary standard when

admitting the crime scene photographs showing the victims body

The admissibility of photographs over a gruesome objection must be determined on a

case-by-case basis pursuant to Rules 401 through 403 of the West Virginia Rules of Evidence

Syl Pt 8 State v Derr 192 W Va 165 451 SE2d 731 (1994) Rule 403 provides that

although relevant evidence may nevertheless be excluded when the danger of unfair prejudice

confusion or undue delay is disproportionate to the value of the evidence Syl Pt 9 Derr

Further

Rule 401 of the West Virginia Rules of Evidence requires the trial court to determine the relevancy of the exhibit on the basis of whether the photograph is probative as to a fact of consequence in the case The trial court then must consider whether the probative -yalue of the exhibit is substantially outweighed by the counterfactors listed in Rule 403 of the West Virginia Rules of Evidence As to the balancing under Rule 403 the trial court enjoys broad discretion The Rule 403 balancing test is essentially a matter of trial conduct and the trial courts discretion will not be overturned absent a showing of clear abuse

Syl Pt 10 Derr

While not in existence at the time of Petitioners trial this Honorable Court has since

established that admissibility during a mercy phase is much broader than during a guilt phase

The type of evidence that is admissible in the mercy phase of a bifurcated first degree murder proceeding is much broader than the evidence admissible for purposes of determining a defendants guilt or innocence Admissible evidence necessarily encompasses evidence of the defendants character including evidence concerning the defendants past present and future as well as evidence surrounding the nature of the crime committed by the defendant that warranted a jury finding the defendant guilty of first degree murder so long as that evidence is

19

found by the trial court to be relevant under Rule 401 of the West Virginia Rules of Evidence and not unduly prejudicial pursuant to Rule 403 of the West Virginia Rules of Evidence

Syl Pt 7 State v McLaughlin 226 W Va 229 700 SE2d 289 (2010) This Honorable Court

has found that the West Virginia Legislature has bestowed upon trial courts discretion to

determine proper sentencing and consider the weight of aggravating and mitigating factors on a

case-by-case basis See State v Tyler 211 W Va 246 251 565 SE2d 368 373 (2002)

Here the Circuit Court did not abuse its discretion in admitting crime scene photographs

during the mercy phase of Petitioners underlying trial The Circuit Court found the photographs

to be probative for purposes of the States argument that Petitioner should not receive mercy in

her sentencing The Circuit Court also found that as Petitioner had already been found guilty of

committing the crime the prejudicial effect against Petitioner was minimal The State argues

that the probative value of the crime scene photographs in Petitioners criminal case is even

higher than a typical murder case largely because of Petitioners actions in orchestrating the

murder of her husband She paid Mr Whittington to perform the crime in an attempt to directly

remove herself from committing the action in person As a result her distance from the situation

was an effective hurdle the State had to pass in proving to the jury that mercy should not be

granted By seeking admission of the crime scene photographs the State showed the jury that

Petitioners actions had a real effect and were just as devastating as the aCtual shooting

performed by Mr Whittington

Petitioner also relies on State v Saunders 166 W Va 500 275 SE2d 920 (1981) in

arguing that such photographs serve only to inflame the jury The State however argues that

Petitioners inference is no longer based upon good law as Saunders is the direct progeny of

State v Rowe 163 W Va 593 259 SE2d 26 (1979) which was directly overruled by this

20

Honorable Court in Derr in favor of giving a trial court discretion to deteImine admissibility

issues on a case-by-case basis

Petitioner also relies upon this Honorable Courts opinion in State v Rygh 206 W Va

295 n1 524 SE2d 447 n1 (1999) in challenging that her due process rights were violated

through the Circuit Courts allegedly relaxed evidentiary standard This Honorable Court

recently revisited recently Rygh however and decided that its previous assumption was

incorrect instead finding that [i]n order to make a recomniendation regarding mercy the jury is

bound to look at the broader picture of the defendants character - examining the defendants

past present and future according to the evidence before it - in order to reach its decision

regarding whether the defendant is a person who is worthy of the chance to regain freedom

McLaughlin 226 W Va at 238 700 SE2d at 298 (citing State v Finley 219 W Va 747 752

639 SE2d 839 844 (2006)) As a result this Honorable Court held the following

The type of evidence that is admissible in the mercy phase of a bifurcated first degree murder proceeding is much broader than the evidence admissible for purposes of deteImining a defendants guilt or innocence Admissible evidence necessarily encompasses evidence of the defendants character including evidence concerning the defendants past present and future as well as evidence surrounding the nature of the crime committed by the defendant that warranted a jury finding the defendant guilty of first degree murder so long as that evidence is found by the trial court to be relevant under Rule 401 of the West Virginia Rules of Evidence and not unduly prejudicial pursuant to Rule 403 of the West Virginia Rules of Evidence

Syl Pt 7 McLaughlin

Therefore the Circuit Court perfoImed well within its discretion in admitting crime scene

photographs in the mercy phase of Petitioners underlying trial that otherwise would have not

been admitted during the guilt phase after considering the enhanced probative value of such

photographs after the jury had returned a deteImination of Petitioners guilt Therefore this

Honorable Court should affiIm Petitioners conviction in the Circuit Court below

21

C The Circuit Court Correctly Read West Virginias Slayer Statute to the Jury Including Appropriate Admonishment Because Trial Counsel for Petitioner Repeatedly Inferred Petitioners Innocence Based upon Her Willingness to Forego Insurance Proceeds

Petitioner next claims that the Circuit Court erred in judicially noticing West Virginias

Slayer Statute and creating a presumption that she was guilty of murder because she forfeited

her insurance proceeds Under West Virginias Slayer Statute codified as W Va Code sect 42-4shy

2

No person who has been convicted of feloniously killing another or of conspiracy in the killing of another shall take or acquire any money or property real or personal or interest therein from the one killed or conspired against either by descent and distribution or by will or by any policy or certificate of insurance or otherwise but the money or the property to which the person so convicted would otherwise have been entitled shall go to the person or persons who would have taken the same if the person so convicted had been dead at the date of the death of the one killed or conspired against unless by some rule of law or equity the money or the property would pass to some other person or persons

Petitioners argument here is disingenuous During the opening statements of Petitioners

trial and numerous insurance witnesses thereafter Petitioner repeatedly made known to the jury

that she was not receiving any insurance benefits and that she had charitably turned the proceeds

of any such insurance over to her children The State demanded that the Circuit Court judicially

notice W Va Code sect 42-4-2 to in fact remove the presumption that Petitioners actions were

based purely upon her own kindness and generosity As such the reading of W Va Code sect 42shy

4-2 in the case below was not virtually valueless as Petitioner claims but incredibly and

insurmountably relevant as the Slayer Statute showed a motive to Petitioners actions beyond

the motive she had already and repeatedly claimed Therefore the reading ofW Va Code sect 42shy

4-2 was not prompted by the State to show guilt as Petitioner here claims but was prompted in

response to Petitioners own actions and arguments during trial

22

D The Circuit Court Did Not Err in Permitting the State to Argue a Theme of Atonement In Closing During the Mercy Phase of Petitioners Underlying Trial

Petitioner here argues that the State engaged in misconduct in arguing for atonement

for Mark Medley and that the Circuit Court erred in allowing such argument to occur Petitioner

then goes beyond the closing remarks of the mercy phase of Petitioners trial and argues that her

entire trial guilt phase included was improperly prejudiced by references to the Mark Medley

incident

As stated above a jury during the mercy phase of a criminal trial is able to hear

evidence of the defendants character including evidence concerning the defendants past

present and future as well as evidence surrounding the nature of the crime committed by the

defendant that warranted a jury finding the defendant guilty of first degree murder so long as

that evidence is found by the trial court to be relevant under Rule 401 of the West Virginia Rules

of Evidence and not unduly prejudicial pursuant to Rule 403 of the West Virginia Rules of

Evidence Syl Pt 7 McLaughlin Here the State flipped the theme of Petitioners trial counsel

during the mercy phase Trial counsel for Petitioner instructed the jury that [m]ercy is about

atonement CAppo vol 11 at 11) The State then requested atonement not only for Chester

Trial but Mark Medley CAppo vol 11 at 27-28) Petitioner immediately objected to the States

statement and while the Circuit Court overruled the objection it instructed the State to move on

and get off that CAppo vol 11 at 28)

Petitioner clearly faced no unfair prejudice as a result of the statement as the State is able

to show and make arguments of aggravating factors to the jury just as the Petitioner herself could

proffer evidence of mitigating factors See Syl Pt 7 McLaughlin As a result even though the

Circuit Court expressed concern over the States reference to the Mark Medley incident for

which Petitioner was convicted the State was rightfully in its power to do so Therefore such

23

remarks were neither unfairly prejudicial nor improper and certainly did not rise to the level of

prosecutorial misconduct

Petitioner next argues that the States reference to the Mark Medley incident unfairly

prejudiced the whole trial This argument is again disingenuous The Mark Medley incident was

a veritable hotbed of evidence attacking Mr Whittingtons credibility as a witness Such

evidence was supremely beneficial to Petitioner As such Petitioner spent much time during the

trial if not more time than the State crossing various witnesses about Petitioners alleged

involvement in the Mark Medley incident to show conflicting evidence discredit the States

witnesses and show that the States key witness Mr Whittington was nothing more than a liar

The crux of Petitioners defense relied upon showing Mr Whittington was a liar and had lied in

implicating Petitioner in the crime below Petitioner therefore used the conflicting testimony and

statements of Mr Whittington during the Mark Medley incident to show his tendency to lie

Frankly if Petitioner could not show Mr Whittington was lying her defense would be

greatly diminished As a result Petitioner mined for information regarding the Mark Medley

incident just as much if not more than the State did with the same witnesses Therefore

Petitioners contention now that the State unfairly introduced all such infonnation is not only

clearly countered by a reading of the record below but is clearly disingenuous as Petitioners

defense tactics relied upon the Mark Medley incident much more than any strategy of the State

E The Circuit Court Did Not Permit the State to Make Statements to the Jury That Were Unsupported by Evidence at Trial

Petitioner next complains of a remark made by the State that the victim was becoming

suspicious of Petitioners finances during the States rebuttal argument at the close of the case

A prosecutor may argue all reasonable inferences from the evidence in the record It is

unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the

24

jury as to the inferences it may draw Syl Pt 2 State v Smith 190 W Va 374438 SE2d 554

(1993) (citing Syl Pt 7 State v England 180 W Va 342376 SE2d 548 (1988))

Petitioner argues that the State e~gaged in prosecutorial conduct by implying that the

victim start[ed] sniffing around the bank accounts (App vol 9 at 101) Petitioner argues that

the States unfounded statement further aggravated the prejudice against her based upon the

repeated references to the Mark Medley incident as complained of above Petitioner claims as a

whole that such comments amounted to a number of improper remarks which warrants reversal

of her conviction The State however again refers to the record in disproving Petitioners claim

The Circuit Court did not permit the State to make such a comment insomuch as the State

moved on following an objection by trial counsel

The evidence of Petitioners case did establish however that Petitioner was becoming

increasingly worried that her husband would find out about the obscene amount of insurance

premiums that she was paying per month The evidence established that Petitioner in obtaining

roughly three-and-a-half times the amount of insurance previously on the victim during the

months leading up to the murder was paying an exorbitantly large amount of insurance

premiums in the process The evidence established that Petitioner was the party responsible for

maintaining the finances of the household Evidence was introduced that Petitioner was worried

that the victim would eventually find out about the insurance premiums Evidence was

introduced that Petitioner was having trouble paying the premiums each month As a result

while Petitioners claim that the States comment was improper may have some merit simply

because of the phrasing of such a comment Petitioners claim that she suffered unfair prejudice

as a result of the statement is simply unsupported Therefore this Honorable Court should

affirm Petitioners conviction in the Circuit Court below

25

F The Circuit Court Properly Admitted a Summary Chart That Was Used by Both Petitioner and the State to Show Numerous Insurance Policies at Issue in Petitioners Criminal Case

Pursuant to W Va R Evid 1006

The proponent may use a summary chart or calculation to prove the content of voluminous writings recordings or photographs that cannot be conveniently examined in court The proponent must make the originals or duplicates available for examination or copying or both by other parties at a reasonable time and place unless the originals or duplicates to be used are identified and previously produced by any party The court may order the proponent to produce the originals or duplicates in court

While Petitioner argues that the act of admitting a summary chart as evidence was improper this

Honorable Court has allowed the use of summary charts for purposes of simplifying otherwise

difficult andor complicated issues See State v Nuckols 152 W Va 736 166 SE2d 3 (1968)

The summary charts in the instant case were verified by the various insurance company

witnesses and served to summarize the overly numerous insurance policies taken out on the

victim before his murder in 1994

Further in continuing the trend of Petitioners allegations Petitioners contention that she

was unfairly prejudiced by the summary chart is again disingenuous The record clearly

illustrates that Petitioner willingly acquiesced to use of the chart because is simplified the dates

on which the insurance policies became effective Petitioners defended against the increase in

insurance coverage based upon accidents and injuries allegedly suffered by the victim in the

years and months leading up to the murder while working as a roof-bolter The record clearly

indicates that Petitioners defense was strengthened through admission of the chart because the

jury would then be able to clearly relate the dates different insurance policies became effective to

the dates the victim suffered work-related accidents and injuries

26

Further during the examination of the many insurance representatives called as State

witnesses the State verified the date amount premium insured and beneficiary of every single

insurance policy covered in the summary chart The same is illustrated above and covered in full

throughout Petitioners lengthy trial transcripts

G The State Proffered Sufficient Evidence to Warrant the Jurys Finding of Guilt Beyond a Reasonable Doubt

This Honorable Court has previously held that an insufficiency of the evidence claim

must surpass an incredibly high bar

In a criminal case a verdict of guilt will not be set aside on the ground that it is contrary to the evidence where the states evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt The evidence is to be viewed in the light most favorable to the prosecution To warrant interference with a verdict of guilt on the ground of insufficiency of evidence the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done

Syl Pt 5 Smith (citing Syl Pt 1 State v Starkey 161 W Va 517244 SE2d 219 (1978))

Here the State proffered the evidence of Mr Whittington a key witness hired by

Petitioner to murder the victim The State offered collaborative evidence of mysterious

communications between Petitioner and Mr Whittington as well as money and vehicles either

given or sold at very low values by Petitioner to Mr Whittington The State offered an

incredibly numerous amount of insurance representatives who illustrated the exorbitant amount

of insurance taken out on the victim within the last year-and-a-half of the victims life totaling

roughly three-and-a-half times more insurance than the victim previously carried

The State offered evidence that the victims signature on the policies may have well been

forged by Petitioner The State offered that Petitioner previously contracted with Mr

Whittington to commit a crime The State indicated that Petitioner showed very little emotion

27

after discovering the victims body Combining all such evidence the State painted a convincing

portrait of Petitioners guilt

The jury also considered the evidence offered by Petitioner including evidence attacking

Mr Whittingtons credibility evidence of the victims numerous mining accidents and injuries

and evidence of Petitioners anguish at the loss of her husband Petitioner spent much time

attempting to destroy the credibility of Mr Whittington offering contrasting statements arising

from the Mark Medley incident and statements to police regarding this underlying criminal

matter The jury considered all of the evidence offered by Petitioner but found Petitioner guilty

based off of the evidence proffered by the State

In viewing all evidence in the light most favorable to the State it is clear that the jurys

underlying finding of guilt and Petitioners conviction should not be disturbed As a result this

Honorable Court should affirm Petitioners conviction in the Circuit Court below

H The Errors Petitioner Now Complains Of Did Not Exist Were Otherwise Not Numerous and Were Harmless

Finally Petitioner claims that cumulative errors deprived her of her right to a fair and

impartial proceeding Where the record of a criminal trial shows that the cumulative effect of

numerous errors committed during the trial prevented the defendant from receiving a fair trial

his conviction should be set aside even though anyone of such errors standing alone would be

harmless error SyI Pt 5 State v Smith 156 W Va 385 193 SE2d 550 (1972)

Here the State has affirmatively proven that such errors were simply not in existence

and in many instances are based off of the disingenuous allegations of Petitioner Petitioner

received a fair and impartial jury trial as guaranteed her by the West Virginia and United States

Constitutions and suffered no degree of unfair or undue prejudice throughout the course of her

28

lengthy proceedings As a result the State respectfully requests that this Honorable Court affirm

Petitioners conviction in the Circuit Court below

CONCLUSION

WHEREFORE for the foregoing reasons the State of West Virginia respectfully

requests that this Honorable Court deny Petitioners claim for relief and affirm the Circuit Court

of Lincoln County West Virginia

Respectfully Submitted

STATE OF WEST VIRGINIA

Respondent By Counsel


SHANNON FREDERICK KISER W Va Bar Number 12286 Assistant Attorney General West Virginia Office of the Attorney General Appellate Division 812 Quarrier Street 6th Floor Charleston WV 25301 Telephone (304) 558-5830 Email ShannonFKiserwvagogov Counselor Respondent

29

CERTIFICATE OF SERVICE

I Shannon Frederick Kiser Assistant Attorney General and counsel for the Respondent

State of West Virginia hereby verify that I have served a true copy ofRespondents Brief upon

counsel for the Petitioner by depositing said copy in the United States mail with first-class

postage prepaid on this 2nd day of February 2015 addressed as follows

Todd S Bailess BAILESS LAW PLLC 120 Capital Street Charleston West Virginia 25301

SHANNONF~DEruCKKnmR

TABLE OF CONTENTS

Page

Table of Contents i

Table of Authorities iii

Assignments of Erroriv

Statement of the Case 1

A Petitioners Trial October 6 1997 through October 232997 Guilt Phase 1

B Petitioners Trial October 24 1997 through October 27 1997 Mercy Phase 11

C Petitioners Remmer Hearing November 5 1998 12

Statement Regarding Oral Argument and Decision 15

Argument 15

A The circuit Court Correctly Applied Sutphin in Finding That Petitioner was Not Unfairly Prejudiced as a Result of the Interaction Between Ms Shamblin and Ms Nunley 15

1 The Circuit Court Correctly Applied this Honorable Courts Holding in Sutphin 15 2 Ms Shamblin Was Clearly Not an Interested Party Under Petitioner

Application ofSutphin 17 3 The State Proved That Petitioner Suffered No Prejudice as a Result of the

Interaction Between Ms Shamblin and Ms Nunley 18

B The Circuit Court Applied the Correct Evidentiary Standard and Found the Crime Scene Photographs to Have Higher Probative Evidentiary Value in the Mercy Phase Of Petitioners Trial 19

C The circuit Court Correctly Read West Virginias Slayer Statute to the Jury Including Appropriate Admonishment Because Trial Counsel for Petitioner Repeatedly Inferred Petitioners Innocence Based upon Her Willingness to Forego Insurance Proceeds 22

D The circuit Court Did Not Err in Permitting the State to Argue a Theme of Atonement In Closing during the Mercy Phase of Petitioners Underlying TriaL 23

E The circuit Court Did Not Permit the State to Make Statements to the Jury That Were Unsupported by Evidence at TriaL 24




Conclusion29

11


CASES Page


STATUTES


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SHANNONF~DEruCKKnmR




Conclusion29

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7
























8




26)




















9
























10





















36)

11


















19)






12
























13










CAppo vol 12 at 62)














14










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR























6


















vol 5 at 7)






7
























8




26)




















9
























10





















36)

11


















19)






12
























13










CAppo vol 12 at 62)














14










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR


















vol 5 at 7)






7
























8




26)




















9
























10





















36)

11


















19)






12
























13










CAppo vol 12 at 62)














14










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR
























8




26)




















9
























10





















36)

11


















19)






12
























13










CAppo vol 12 at 62)














14










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR




26)




















9
























10





















36)

11


















19)






12
























13










CAppo vol 12 at 62)














14










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR
























10





















36)

11


















19)






12
























13










CAppo vol 12 at 62)














14










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR





















36)

11


















19)






12
























13










CAppo vol 12 at 62)














14










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR


















19)






12
























13










CAppo vol 12 at 62)














14










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR
























13










CAppo vol 12 at 62)














14










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR










CAppo vol 12 at 62)














14










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR










ARGUMENT









15


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR


at 408





















16


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR


defendant Id






















17





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR





















18











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR











Further


Syl Pt 10 Derr




19























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR























20














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR














Syl Pt 7 McLaughlin






21





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR





2













22






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR






incident


















23
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR
























24
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR
























25



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR



















26




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR




















27























28



CONCLUSION









29







SHANNONF~DEruCKKnmR























28



CONCLUSION









29







SHANNONF~DEruCKKnmR



CONCLUSION









29







SHANNONF~DEruCKKnmR







SHANNONF~DEruCKKnmR

Date post:	16-May-2020
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LILLIE MAE TRAIL, RESPONDENT'S BRIEF · employ of Greg Whittington as a paid hit-man. During...

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